Chapter 9 Guidance on answering the pop quizzes

Errors of law and control of fact-finding

The Anisminic Saga

Page 349: What do you think about these three questions?

  1. Was Anisminic rightly decided?
  • Parliament had told the courts not to question the determination by the Foreign Compensation Commission of any application. The case was rightly decided if, because of its interpretation of the compensation rules, it had not determine the application. Did it determine the application?
  • If you think that the Commission had determined the application, do you think that, in order to impose the rule of law on the Commission, the judges were justified in reviewing its decision in spite of Parliament’s decision to prohibit judicial review?
  1. Does Anisminic support Lord Browne-Wilkinson’s conclusion in Page, that  ‘…in general any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law.’?
  • None of the Law Lords in Anisminic stated the judges’ role that broadly. Lord Denning did so in Pearlman, and Lord Diplock said, in obiter comments in Racal and O’Reilly, that Anisminic had established the error of law doctrine.
  • Can you argue that even though the Law Lords in Anisminic did not expressly support the Page doctrine, their decision inevitably led to it?
  1. Does Page set the right standard for judicial review?
  • A general rule that courts are to quash decisions that are incompatible with the judges’ own views would be a breach of comity (see 1.5.4), because (1) it would show no respect for another public authority’s role, and (2) it would disregard the damage that the courts will do to the ‘valuable machinery’ of another public authority’s process, if they give review that is not justified by the core rationale for judicial review.
  • But what about the judges’ views as to the law? Is law the judges’ exclusive preserve, or is it possible for another public authority to have a better capacity than the judges to give a good interpretation of the scheme of rules that it administers?

How to decide Anisminic

Page 350: How would Anisminic have been decided if the House of Lords had adopted the Canadian standard (in Canadian Union of Public Employees v New Brunswick Liquor Corporation [1979] 2 SCR 227), that an interpretation of the law by an administrative tribunal will only be set aside if it was patently unreasonable?

  • Ironically, the CUPE standard, unlike Lord Diplock’s rule, is consistent with what Lord Reid and Lord Wilberforce said they were doing in Anisminic.
  • It would be hard to claim that the Commission’s interpretation of the law in Anisminic was ‘so patently unreasonable that its construction cannot be rationally supported’, especially since Lord Pearson gave careful reasons for agreeing with the Commission’s interpretation (so he dissented, even though he agreed with the majority about the standard of review). But in a case in which there is no argument whatsoever in favour of the Commission’s interpretation, then it would make sense to say not merely that it misinterpreted the legislation, but that it wasn’t even applying the legislation.

Error of law and acting incompatibly with a policy

Page 356: The implication of Mandalia v Home Secretary [2015] UKSC 59 is that the Home Office cannot act on its own reasonable interpretation of its own policies, if the judges’ interpretation is different. Is that a breach of the duty of comity that judges owe toward administrative authorities (see 1.5.4)? Or does it protect claimants from misinterpretation of the standards that the Home Office is committed to applying?

  • It is a breach of comity if the courts’ interference with government policy making prevents the government agency from exercising its own responsibility in the public interest. If the courts do not let the Home Office interpret its own policies, does that hinder the Home Office from doing its job?
  •  Notice that, if the answer to that question is ‘yes’ (i.e., if the courts ought to allow the Home Office to interpret its own policies), then although the doctrine in Mandalia is inappropriate, it may still protect claimants.
  • The courts could protect claimants from abuse by the Home Office if they simply overruled any Home Office decision that they would not have made. Then the judges would have taken over the Home Office’s responsibility; that would be unjustified (why?), even though it would give the judges the opportunity to protect claimants from mistakes or abuse by the Home Office.
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